CITATION: R. v. Fournier, 2015 ONSC 81
COURT FILE NO.: 11/14
DATE: 20150109
SUPERIOR COURT OF JUSTICE - ONTARIO
SUMMARY CONVICTION APPEAL – TORONTO REGION
RE: HER MAJESTY THE QUEEN (Respondent) v. STEPHANIE FOURNIER (Appellant)
BEFORE: Justice N. J. Spies
COUNSEL: Frank Addario, for the Appellant
Richard Nathanson, for the Respondent
DATE HEARD: October 8, 2014
E N D O R S E M E N T
Introduction
[1] The Appellant, Stephanie Fournier, appeals from her conviction of assault with a weapon and assault causing bodily harm imposed by His Honour Justice Marvin A. Zuker of the Ontario Court of Justice on December 12th and 16th, 2013, in relation to the complainant, Ryan Gruneir. The charges arose from a fight at the F-Stop, a nightclub, during which someone swung a glass at Mr. Gruneir, hitting him in the eye. The identity of the person who swung the glass was the sole issue at trial.
The Issues
[2] The Appellant raises four grounds of appeal. Her counsel, Mr. Addario, submitted that the trial judge’s reasons are insufficient in three respects and leave Ms. Fournier without a sufficient explanation for her convictions and preclude this Court from assessing whether the learned trial judge used the correct legal framework. In addition, it is the position of Mr. Addario that the verdict is unreasonable and that Ms. Fournier’s convictions ought to be quashed and acquittals entered or, in the alternative, that this Court order a new trial.
[3] Mr. Nathanson for the Crown submitted that the trial judge's reasons are sufficient when considered in the context of the evidence, the issues at trial and the submissions of counsel. He argued that the issues surrounding the identification evidence were thoroughly covered by both counsel, and were largely restated by the trial judge in his reasons. It is his position that it was clear that the principal identification witness was William Hendrickson, the doorman at the F-Stop, and the trial judge thoroughly reviewed his evidence and the cautious approach he was required to take when considering it. Mr. Nathanson submitted that it is clear that the trial judge convicted Ms. Fournier because, based on the evidence provided by Mr. Hendrickson, and having had an opportunity to look at the video of security footage being referred to by Mr. Hendrickson, the trial judge was satisfied beyond a reasonable doubt that the assailant seen on the video is Ms. Fournier. He argued that there was no need for a formal restatement of that conclusion by the trial judge.
The Evidence at Trial
[4] The trial took place over three separate days with the viva voce evidence being heard on August 27th and 29th, 2013 and submissions on October 1, 2013. There was no dispute that on June 16, 2012, Mr. Gruneir went to the F-Stop nightclub in Toronto with some friends. Ten or fifteen minutes after he arrived at the club, Mr. Gruneir was walking across the dance floor when he bumped into another man. He walked away but shortly afterwards he returned with a friend to the man he bumped into. The two men exchanged shoves and after a few seconds of shoving, someone swung a glass hitting him in the eye. Mr. Gruneir did not see who hit him. He remembered only "bits and pieces" of what happened after he was hit. He suffered significant damage to his eye.
[5] The only issue at trial was the identity of the person who hit Mr. Gruneir with the glass. None of the witnesses who saw the incident identified Ms. Fournier as the assailant.
[6] One person who accompanied Mr. Gruneir to F-Stop, Jamie Habert, who was standing next to Mr. Gruneir, heard the sound of the glass smashing but did not see who hit his friend. He said the atmosphere was dark and the lights were dimmed.
[7] Another of Mr. Gruneir's friends, Ethan Werek, was also standing near Mr. Gruneir when the assault occurred. The glass went over Mr. Werek's shoulder. Mr. Werek testified that a woman he saw Mr. Gruneir talking to was the person who swung the glass. The only description he could provide of the woman was that he thought maybe she was blonde. Crown counsel showed Mr. Werek security footage from the nightclub at trial. He described the video as "pretty blurry" and agreed the footage was staggered, not fluid and difficult to watch. He was not even able to identify himself in the video. He could not pick out the woman he saw swing the glass in the footage of the incident or in footage taken from near the club's front door.
[8] Mr. Hendrickson was called by the Crown as a recognition witness. He was employed as a “VIP Host” and it was his job to “engage with guests as they arrive . . . get them seated . . . if they’re VIP guests, I walk them in, I get them set up at the bar . . . .” On the night of the incident, Mr. Hendrickson “probably would have been managing entries and deciding who comes in and who doesn’t”.
[9] Mr. Hendrickson had previously met Ms. Fournier a few times at another club where he held a similar position. While he was working at that club he encountered Ms. Fournier "one to two times over a period of three to four years" prior to the night of the incident. He had come to know who she was because "it's sort of the nature of my job, right. I mean, I look at the name, look at the person, check the ID and then they go inside. So, I mean, that's really sort of the basis of our interaction, is the process of identification really". The previous exchanges with Ms. Fournier were quite short.
[10] On the night of the incident, Mr. Hendrickson had been instructed by the club’s owner to put Stephanie Fournier on the owner’s guest list and to give her and a guest complementary entry. Mr. Hendrickson testified that he knew who the owner was referring to and he added her name to the owner’s guest list.
[11] Mr. Hendrickson was at the front door of the club and recognized Ms. Fournier when she arrived. He testified that he is a:
sort of a detail oriented person, and she also arrived with somebody that I used to work with. So there was sort of a short, like, exchange between the two of us, I think we hugged at the front door. So I was just engaged with them a little bit longer than I normally would have been with other guests, and I recognized her, and I recognized the girl that I worked with, and we said hello, and that was it. I mean, she told me her name, and I was like, "Yeah, I was expecting you".
[12] Mr. Hendrickson testified that because he had received a phone call from his employer asking him to place Ms. Fournier on his guest list, the interaction with Ms. Fournier that night is “something I sort of remember kind of distinctly”. He admitted that the duration of the interaction was around 20 to 30 seconds at most. There is no suggestion in the evidence that he walked her into the club. He did not see her again that night.
[13] Mr. Hendrickson described Ms. Fournier as "probably a little bit older than me, so probably in her mid-thirties, maybe a little later. I remember that she had blonde hair. I remember that she had a recognizable French Canadian accent, to me anyways”. He also vaguely remembered something about her front teeth. Mr. Hendrickson described Ms. Fournier that night as wearing "a really long dress, like a sun dress" and carrying "sort of like a tote bag" over her shoulder. The dress was "like a blue, cerulean blue”. Although unable to recall at trial, he agreed he probably told the police (five days after the incident) that she was wearing a fashionable scarf and that she was between five-six and five-seven.
[14] According to the Information, Ms. Fournier was 30 years old on the night of the incident.
[15] Several days after the incident, Mr. Hendrickson was shown security video from F-Stop in which he recognized the moment captured on that video when Ms. Fournier arrived with the girl that he had worked with many years earlier whom he hugged. Mr. Hendrickson was not shown other video footage from F-Stop at that time. The video clip depicting the arrival of Ms. Fournier was not played during the trial.
[16] At trial, Mr. Hendrickson also gave a tentative in-dock identification of Ms. Fournier. When asked whether he saw Ms. Fournier in the courtroom, Mr. Hendrickson replied: "I see someone who resembles her. I couldn't be 150 percent sure, but I'm pretty sure that she's sitting in the courtroom." Counsel were unable to advise me where she was sitting at this point and in particular whether or not she was sitting at counsel table.
[17] Mr. Hendrickson did not witness the assault on Mr. Gruneir. At trial, the Crown showed him excerpts of the club's security footage showing the dance floor on the night of the assault. Mr. Hendrickson was asked if he recognized anyone in the video, and testified that "there's somebody at the front of the screen there wearing sort of like a - it looks like the dress that Stephanie was wearing when she came in," (camera 12 at 00:52:12 seconds). When asked if he knew who that person is, he said, "it looks like the young lady that I said hello to at the front door that evening, it was Stephanie Fournier, but it's a grainy video, but it sure looks like her and it sure looks like what she was wearing".
[18] From watching the video Mr. Hendrickson said that this female, whom he had identified as Ms. Fournier, turned to face the bar and that she had a drink in her left hand, (camera 12 at 00:52:29 seconds).
[19] The video from camera 12 was stopped again at 00:52:52. Mr. Hendrickson was asked if he was "able to say whether that's Stephanie Fournier with any certainty or not". He responded, "I can tell you it definitely resembles her, and if you were to ask me is it the same person, on a balance of probabilities, yes, but I couldn't tell you for sure … It looks to me to be a spaghetti-strap long sun dress in some sort of blue colour”.
[20] Even though Mr. Hendrickson was shown the video three times, he was not able to see what this woman did during the incident itself (which occurred a few seconds before 00:53:46) because she sort of got "lost in the shuffle."
[21] Approximately thirty seconds after the assault (camera 12 at 00:54:16) the video was stopped and Mr. Hendrickson said “I think that looks like her there”. The only way to know now whom he was pointing to is that counsel for Ms. Fournier stated for the record that it was a dark figure in the middle of the screen. Mr. Hendrickson testified that he couldn’t say exactly what this person was doing with her hands but that one of her hands at least was up. This, however, is after the altercation that resulted in the injury to Mr. Gruneir.
[22] At 00:54:27 Mr. Hendrickson saw this person again closer to the front. There was a man in a white shirt standing behind her who he did not know. At 00:54:33 this female walked out of the camera range and the man in the white shirt followed her. Mr. Hendrickson was then shown video from cameras 3 and 4 and he observed the same young lady and the gentleman in the white shirt heading towards the front door and then exiting the club.
[23] As this woman is leaving, the video from camera 3 was stopped at 00:55:07 and Mr. Hendrickson stated that the woman “appears to be the young lady that I believe to be Stephanie Fournier”. When asked “why” he answered:
Well, because I'm looking at grainy surveillance footage, so it's difficult for me to look at it and tell you with any sense of certainty that it's absolutely her, [Ms. Fournier] but I mean, the events occurred over a year ago and I was almost - I was almost certain what she was wearing, what she looked like, and to be, like I said, on a balance of probabilities, if you were to ask me, I would say that was probably her. It looks a lot like her. It's who I remember her being. It's what my memory tells me.
[24] In cross-examination, Mr. Hendrickson agreed the surveillance footage was grainy and jerky, the lighting was dark, the club was crowded and "for the most part…we don't see her [the woman he identified as Ms. Fournier] face clearly." This portion of the cross-examination ended with the following exchange:
Q. There's no direct clear facial shot of the woman wearing the blue dress, correct?
A. Not that I can point out to you, no.
Q. And you were not able to depict or make out with any kind of clarity the facial features of that person?
A. I think it would be difficult to do that in that video.
[25] This woman was not wearing a scarf in the video inside the club. Mr. Hendrickson could not say how many blonde women with blue dresses were in the club that evening. The club was near capacity with about 195 or 200 guests and the dance floor where the assault occurred was packed with people.
[26] The only witness who saw the person who assaulted Mr. Gruneir and could give some description of her was Melanie Abdilla, a waitress at F-Stop. Ms. Abdilla did not testify at the trial but her evidence was submitted by way of an Agreed Statement of Fact, (“ASF”) drawn from an interview by police conducted over 14 months after the incident.
[27] According to the ASF, Ms. Abdilla witnessed a female smash a glass into the face of Mr. Gruneir. She said that it "all happened so fast". She grabbed the female and said "I saw what you did" and then left her to inform security. When she returned with security, the female and the friend she had been with were gone.
[28] Ms. Abdilla had never seen this woman before, and she did not see what happened before the glass was smashed. She did not see the woman again after going to find security. She described the assailant as a white female, “not your average club goer, who "looked a bit older. Maybe 35." She was “shorter maybe 5’5, 5’4 maybe shorter”, "English or French", with "maybe sharper features" and short blonde hair, wearing "maybe wide pants . . . jeans maybe". Ms. Abdilla had "no idea about her top" but regarding clothing she said, "I feel like there was some jeans there" and "maybe a jacket in her hand … she didn’t really fit in with the night club scene … her shoes may have been more chunky or flats".
[29] The police showed Ms. Abdilla a photo line-up. She did not identify Ms. Fournier. She said, "if it was anyone, it was Number 1". Ms. Fournier was not the person in photo Number 1.
[30] The Defence did not call any evidence at trial.
The Trial Judge's Reasons for Convicting
[31] The trial judge released written Reasons for Judgment on December 12, 2013 and convicted Ms. Fournier of aggravated assault. However, Ms. Fournier was not charged with aggravated assault. She was charged with assault with a weapon and assault causing bodily harm as the trial judge correctly stated at the beginning of his reasons. On December 16, 2013, the trial judge released an Addendum to his Reasons for Judgment, substituting his finding that Ms. Fournier committed aggravated assault with a finding that she committed assault with a weapon and assault causing bodily harm.
[32] The Reasons of the trial judge are 38 pages long; 101 paragraphs. The trial judge had a transcript of the evidence and submissions, which he clearly relied on in the preparation of his Reasons. In fact, he quoted from it extensively.
[33] The first 14 pages of the trial judge’s Reasons set out the evidence of the three witnesses that were called by the Crown in some detail. Several paragraphs are excerpts from the transcripts. Mr. Addario takes no issue with the accuracy of this section of the reasons. However, this section does not refer to the ASF and the agreed evidence of Ms. Abdilla.
[34] The trial judge then set out the submissions made by the Crown [not Mr. Nathanson] and Mr. Fenton, Defence counsel. It is here that he made his first reference to Ms. Abdilla but with respect to a revision the Crown sought to the ASF to do with the photo line-up. The trial judge did not otherwise refer to the evidence of Ms. Abdilla as summarized in the ASF in the Crown’s submissions.
[35] The trial judge went on to identify the issue as the identity of the person who assaulted Mr. Gruneir and set out the Crown’s submissions as to how the evidence of Mr. Hendrickson proved that the assailant was Ms. Fournier.
[36] At paragraph 41 of his Reasons, the trial judge stated that the Crown submitted that “He [Mr. Hendrickson] was able to point her [Ms. Fournier] out as being the person on the dance floor at the time of the incident, and, again, that occurred at 12:53:45.” There is no dispute that this statement is not correct. As already stated Mr. Hendrickson could not see Ms. Fournier on the video at the time of the incident.
[37] The submissions made by Mr. Fenton are summarized starting at paragraph 43 of the Reasons. The trial judge stated that Mr. Fenton submitted the issue was the reliability of Mr. Hendrickson’s evidence and that his evidence did not take the Crown to a positive identification in this case. Some of Mr. Hendrickson’s evidence is set out; presumably those portions Mr. Fenton referred to. The trial judge then referred to some of the ASF with respect to Ms. Abdilla and the fact that she gave a “quite strikingly a different description” of the assailant than the one Mr. Hendrickson provided. This portion of the Reasons appears to be a summary of what Mr. Fenton submitted about the evidence of Ms. Abdilla.
[38] After setting out the relevant sections from the Criminal Code dealing with the charges, the trial judge stated the issues as: 1) Credibility, 2) Identification, and 3) Whether the Crown has proven the essential elements of each offence beyond a reasonable doubt. The trial judge then dealt with each issue in turn.
[39] In his “Credibility” section the trial judge set out the law with respect to the presumption of innocence and he erroneously stated that: “there are various conflicting testimonies between the Crown witnesses and the Accused”. He then went on to refer to and set out the principles in R. v. W.D. 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. He included some law on assessing credibility and eyewitness identification. He concluded at paragraph 58 that: “I agree that Hendrickson is an honest witness in that he tried to sincerely recount the events as best he could recall them. He was forthright. He displayed no indicia of bias.” This is the only specific reference to the case at bar in this section of the Reasons.
[40] At paragraph 59 the trial judge continued:
Is the Court persuaded as to the requisite standard of proof that the Crown theory of observational continuity may adequately compensate for any evidentiary frailties that attach to his [Mr. Hendrickson’s] identification? [Emphasis added]
[41] Counsel were not sure when I inquired what the trial judge meant by the term: “observational continuity” but I agree with Mr. Nathanson that it could suggest the trial judge was alive to the issue that Mr. Hendrickson was being asked to spot the woman he believed to be Ms. Fournier on the dance floor and then watch her as the video continued to determine if she was in fact the assailant. Mr. Hendrickson lost her in the shuffle but Mr. Nathanson submitted that this Court would be able to follow her movements and conclude that she was the assailant, a matter I will come back to when I consider the fourth ground of appeal.
[42] Under the next heading “Identification”; the trial judge set out some more law with respect to identification evidence, acknowledging that the court must exercise caution considering the identification evidence. An excerpt from what appears to be Watt’s Ontario Specimen Jury Instructions on the factors to consider for eye-witness identification starting partway through paragraph 65 is also included. This Identification section is four pages long and makes no specific reference to the case at bar.
[43] The next section is headed: “Reasons” and begins with more law on identification evidence including reference to R. v. Leaney and Rawlinson (1989), 1989 CanLII 28 (SCC), 50 C.C.C. (3d) 289 which the trial judge stated “has some striking similarities to the case at bar”. He noted that the appeal court had found that the identification evidence of one of the police officers, who had a 15 year acquaintance with one of the accused and was familiar with his features and idiosyncrasies which were observable on a videotape of the break and enter, was admissible and that the trial judge has correctly come to an independent conclusion that the second accused was one and the same person as the other thief seen on the video. No other reference is made to the case at bar and how the Leaney case assists save that it confirms that a trier of fact can review a videotape and come to an independent conclusion in certain circumstances.
[44] The trial judge did not give any explanation for why he found the other decision referred to; R. v. Nikolovski 1996 CanLii 158 (SCC) to be important. The facts in that case are quite different from the case at bar since the videotape was clear and of good quality and showed the perpetrator of the offence for a significant period of time at different angles and at close range; a far cry from the security video in the case at bar.
[45] For some reason this section of the decision then goes on to repeat three paragraphs virtually verbatim from what had already been set out under the heading “Credibility”; paragraphs 71=53, 72=54 and 73=55. The trial judge then referred to more law on eyewitness identification and in paragraph 76 virtually repeated paragraph 57 from the Credibility section referring to in-dock identification. No specific reference is made to the case at bar save that in referring to the law the trial judge states at paragraph 76 “where, as here, …”.
[46] The trial judge set out a second heading entitled “Positions of the Parties” starting at paragraph 77 although he referred only to their penultimate positions as to whether or not the Crown had proven the case beyond a reasonable doubt. He then engaged again in reviewing principles of credibility and referred again to W.(D). and set out another paragraph providing case law on the meaning of “credibility” followed by a summary of the concept of reliability. Again no specific reference was made to the case at bar.
[47] This is followed by a single paragraph; paragraph 83, under the heading: “What standard of proof must a party meet in order to succeed at trial?” which essentially repeated what is stated earlier at paragraph 52. This paragraph is followed by two sections, one headed “How does this burden operate in circumstantial evidence cases?” and “What rules govern the admissibility of photographs and videotapes?” both of which refer only to case law and make no specific reference to the case at bar.
[48] These sections are followed by a section headed “Post Offence Conduct Evidence” where, starting at paragraph 86 and continuing for 11 paragraphs, some of the cases on this subject are reviewed. Again there is no specific reference to the case at bar. This is followed by a heading “Is there post-offence conduct relevant to the question whether the accused had committed the culpable act?” but no conduct of Ms. Fournier’s is referred to. Instead in paragraph 97 there is a reference to R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 SCR 320 and R. v. Starr, 2000 SCC 40, which deal with the standard of proof beyond a reasonable doubt.
[49] Immediately following paragraph 97 and with no further heading, the last four paragraphs of the trial judge’s reasons are as follows:
I agree that the Court may be tempted to “jump too quickly from evidence of post-offence conduct to an inference of guilt” (White, supra (1998), at para. 57) without giving proper consideration to alternate explanations for the conduct in question. I have considered this.
I accept the evidence of the Complainant as to what went on at the incident when he was assaulted and what occurred immediately following the incident.
I am satisfied beyond a reasonable doubt that the Accused was the person who assaulted the Complainant causing the injuries summarized above. I find the Accused committed an assault by applying force directly to the Complainant without the consent of the Complainant and thereby created such injuries as to support the finding of aggravated assault.
I therefore find that the Crown has proved beyond a reasonable doubt the essential elements of the offence as charged and find the Accused guilty as charged.
The Law-The Sufficiency of Reasons
[50] Much has been said by the Supreme Court of Canada on the sufficiency of reasons and the law on this topic is settled. Although counsel referred to different decisions, their principal disagreement was in the application of settled law to the case at bar.
[51] In R. v. R.E.M., 2008 SCC 51, 2008 S.C.C. 51, the court confirmed at paragraph 15:
This Court in Sheppard and subsequent cases has advocated a functional context-specific approach to the adequacy of reasons in a criminal case. The reasons must be sufficient to fulfill their functions of explaining why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review.
[52] By reading the reasons in context, the Supreme Court of Canada directs that I must read them
as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered [references omitted].
[17] These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a “watch me think” fashion. It is rather to show why the judge made that decision. R.E.M. at paras. 16 and 17, emphasis in quote.
[53] The settled law was reviewed again in the most recent decision from the Supreme Court of Canada dealing with the sufficiency of reasons in a criminal case; R. v. Vuradin, 2013 SCC 38. In that case Karakatsanis J. summarized the law with respect to this issue and concluded that "[t]he core question in determining whether the trial judge's reasons are sufficient is the following: Do the reasons, read in context, show why the judge decided as he did on the counts in question?” [Emphasis added, at para. 15]
First Ground of Appeal-The trial judge's reasons for rejecting the exculpatory evidence of Melanie Abdilla are insufficient and preclude appellate review
[54] The first ground of appeal is that the trial judge's reasons for rejecting the exculpatory evidence of Melanie Abdilla are insufficient and preclude appellate review.
[55] Mr. Nathanson submitted that it was not necessary for the trial judge to reject Ms. Abdilla’s evidence in order to convict Ms. Fournier and in particular that Ms. Abdilla’s evidence was not exculpatory and her description of the assailant was not necessarily inconsistent with Mr. Hendrickson’s description of how Ms. Fournier looked on the night in question. In support of his submissions, he argued that Ms. Abdilla’s statement was taken over 14 months after the incident, she had a very brief moment to look at the assailant, had never seen her before and never saw her again, she was far from certain about any of the aspects of the description that differed from that provided by Mr. Hendrickson, the video shows that the assailant is not wearing jeans and does not have short blond hair and that accordingly it does not appear that Ms. Abdilla’s description was particularly accurate and in several aspects the descriptions given by the witnesses are in agreement.
[56] Finally Mr. Nathanson argued that while the trial judge did not state why he was not left in doubt by the description given by Ms. Abdilla, he was well aware of Defence counsel’s position that her description differed from that given by Mr. Hendrickson and in his reasons for judgment the trial judge reproduced details of both descriptions “when considering the reliability of the eyewitness identification.” As I have already summarized however, this was in the context of summarizing the submissions of counsel.
[57] It was up to the trial judge to decide whether or not the evidence of Ms. Abdilla was exculpatory or could be reconciled with the evidence of Mr. Hendrickson or whether it should e rejected. Because the trial judge did not come back to the evidence of Ms. Abdilla in his reasons, we do not know if he failed to consider Ms. Abdilla’s evidence in his reasoning, decided to reject her evidence and if so why, or if he found a way to reconcile her evidence with the evidence of Mr. Hendrickson, how he did so. We also do not know if he found her evidence to be exculpatory and if so why it did not raise a reasonable doubt.
[58] Considering the full context of the trial record we do not know why the trial judge did not refer to the evidence of Ms. Abdilla as a reason for convicting the Appellant. Not only do we not know how the trial judge dealt with this evidence, we have no idea how it impacted the “why” of his decision to convict Ms. Fournier.
[59] I agree with Mr. Addario that the absence of an explanation impedes Ms. Fournier's ability to exercise her right of appeal. Ms. Abdilla was the only witness who saw the assault on Mr. Gruneir and was able to give a reasonably detailed description. Her description of the assailant differed materially from Mr. Hendrickson's description of Ms. Fournier on June 16, 2012 and she did not pick Ms. Fournier out of a photo line-up; in fact, she tentatively identified a picture of someone other than the Appellant. As such on the face of her evidence, it was exculpatory. Furthermore, as Mr. Addario points out, the Crown did not suggest that Ms. Abdilla's description was unreliable at trial. I do not see how a trier of fact could reconcile her evidence with the description given by Mr. Hendrickson and so her evidence, if accepted, could raise a reasonable doubt.
[60] In R. v. Ezard, 2011 ONCA 545, [2011] O.J. No. 3575 at para. 27 the Court of Appeal stated:
The case law makes it clear that a trial judge need not refer to or deal with discrepancies in respect of every piece of contradictory evidence. However, the judge must explain how he reconciled at least some of the evidence that supported the theory of the appellant and his potential innocence, in concluding that he was satisfied of guilt beyond a reasonable doubt.
[61] A good example of when contradictory evidence must be dealt with in a case similar to the facts of the case at bar is R. v. Weckwerth, 2013 ONCA 666, [2013] O.J. No. 4977. In that case the Court of Appeal found that the trial judge had failed to address the evidence of a witness that was exculpatory and could have raised a reasonable doubt about the accused’s guilt and on that basis set aside the conviction and ordered a new trial. The court held, at paragraph 5: “[w]e cannot tell from the trial judge’s reasons whether he rejected that evidence, or if not, how it could stand with the crown’s evidence, or if he simply did not consider it.” The court went on to state that the other findings of the trial judge did not permit the court to “fill that void.”
[62] As in Weckwerth, the failure of the trial judge to give any reasons as to how he considered the evidence of Ms. Abdilla or even that he did consider her evidence, is sufficient on its own to direct a new trial. Her evidence, if accepted, is capable of raising a reasonable doubt.
[63] The Appellant argues in the alternative that even if the trial judge had provided sufficient reasons, his decision to reject Ms. Abdilla's evidence describing the assailant and rely on Mr. Hendrickson's evidence putting Ms. Fournier near the incident as his basis for convicting was unreasonable in that Mr. Hendrickson's evidence was unreliable and could not safely support a conviction. I will deal with this argument when I come to the fourth ground of appeal. I note, however, that this argument illustrates the difficulty for the Appellant because in considering this submission I cannot even conclude from the reasons of the trial judge that this is how he dealt with the evidence of Ms. Abdilla and why in light of her evidence he decided to convict Ms. Fournier. This leaves the Appellant guessing about how this evidence was dealt with and renders the Reasons of the trial judge unreviewable on this point aside from the issue of the sufficiency of his Reasons.
Second ground of appeal-The trial judge's reasons for relying on Mr. Hendrickson's identification of the Appellant as the possible assailant are insufficient and preclude appellate review
[64] The appellant’s second ground of appeal is that the Reasons of the trial judge for relying on Mr. Hendrickson's recognition evidence were insufficient and do not disclose why, having accepted Mr. Hendrickson's evidence, the trial judge decided to convict. It is submitted that Mr. Hendrickson put Ms. Fournier at the club but did not identify her as the assailant. Mr. Addario argues that it was incumbent on the trial judge to explain his reasoning process and identify the evidence he relied on to fill the “gaps” in Mr. Hendrickson's evidence. Mr. Nathanson submits that it is clear from the trial record and from the trial judge’s Reasons why Ms. Fournier was convicted, and why the trial judge felt he could rely on Mr. Hendrickson’s evidence.
[65] Before coming to these submissions, in my view the fact that the trial judge repeated the erroneous submission made by the Crown in his Reasons, that Mr. Hendrickson was able to point Ms. Fournier out as being the person on the dance floor at the time of the incident, is another fundamental problem with his Reasons. The only part of the Reasons that expressly refer to Mr. Hendrickson, apart from summarizing his evidence or counsel’s submissions, is at paragraph 58 where the trial judge states that he “agrees” that Mr. Hendrickson is an honest witness and he gave a few reasons for that conclusion.
[66] Mr. Nathanson submitted that the trial judge was clearly aware of the terms by which Mr. Hendrickson qualified his identification of the assailant seen on the video as Ms. Fournier as he spent eight full pages of his written judgment (pages 7 through 15) thoroughly reviewing Mr. Hendrickson’s evidence, and specifically noted the terms by which Mr. Hendrickson identified Ms. Fournier. He points out that the trial judge also reproduced portions of the cross-examination of Mr. Hendrickson regarding the description of Ms. Fournier that he gave police and the nature of the surveillance video on which he had identified Ms. Fournier. However, as Mr. Nathanson fairly conceded, it is not possible, based on the Reasons, to determine whether and if the trial judge relied on this erroneous submission by the Crown. Accordingly, we do not know if the trial judge assumed that the Crown submission was correct that Mr. Hendrickson had identified Ms. Fournier as the assailant and convicted her on this basis. If he did so, that would be a reversible error. This alone in my view warrants a new trial on the basis of inadequate Reasons.
[67] Turning to the other submissions dealing with Mr. Hendrickson, as Mr. Nathanson submitted, at paragraph 59 of his Reasons, where the trial judge refers to the Crown’s theory of “observational continuity”, he queries whether this theory may “adequately compensate for any evidentiary frailties that attach to his [Hendrickson’s] identification”. He goes on to state that he says this for four reasons; the first the fact that the events occurred virtually a year before Mr. Hendrickson testified and the second the fact that the scene when the assault occurred was “chaotic and crowded”. The other two reasons refer to Mr. Gruneir and are not relevant to the issues before me.
[68] Mr. Nathanson submitted that having thoroughly reviewed both the identification evidence and the positions of both parties in his Reasons, the trial judge committed nine pages of his reasons (pp. 23-31) to the case law which stands for the need for caution in regards to eyewitness identification; in particular where such evidence constitutes essentially the only evidence of identification. As he points out, the Appellant has taken no issue with the correctness of the principles discussed by the trial judge on this issue.
[69] Mr. Nathanson argued that having just reviewed the applicable legal principles in detail, and the factual matrix surrounding the identification evidence in this particular case, there was no need for the trial judge to repeat all of the same principles and evidence again when reaching his final conclusion. He relies on the words of Cory J. who wrote for the Supreme Court of Canada in R. v. MacGillivray, 1995 CanLII 139 (SCC), [1995] S.C.J. No. 20 at paragraph 15:
. . . the trial judge set out the general law and the test by which he would be guided. The fact that he did not specifically repeat it in his last paragraph cannot be taken as detracting from his stated intention. If a trial judge sets out the legal principle and test that he intends to apply, it should be assumed, in the absence of a very clear indication to the contrary, that he in fact followed that very course. To come to any other conclusion would I think be unfair to trial judges.
[70] There are a number of reasons to distinguish this case from the case at bar. First of all, at paragraph five of the judgment, the court states that “there was ample evidence of a cogent and convincing nature presented to the trial judge upon which he could base his conviction of the appellant.” In my view that cannot be said of this case and subject to my review of the video itself and reaching my own conclusions, which counsel urged me to do, based on the evidence cited by the trial judge, I would not have convicted the Appellant. Furthermore, the issue raised in MacGillivray was whether or not having set out the general law on the subject the trial judge had to deal with as well as the test by which he would be guided, he had to specifically repeat this in his last paragraph. Importantly, however, in that last paragraph, the trial judge did make certain findings of fact and gave brief reasons for those findings. That is not the case here.
[71] Mr. Nathanson also drew my attention to R. v. Braich, 2002 SCC 27, a decision released at the same time as R. v. Sheppard, 2002 SCC 26, [2002] 1 R.C.S. 869, where the Supreme Court of Canada discussed the issue of sufficiency of reasons specifically in the context of identification evidence, where like the case at bar the only live issue in the case was identification. In that case, two men were convicted of manslaughter and aggravated assault. The trial judge delivered oral reasons for judgment occupying 17 pages of transcript.
[72] The British Columbia Court of Appeal quashed the convictions on the basis that "the 'frailties' of the identification evidence had not been subjected in the reasons for judgment to sufficient 'judicial investigation or analysis'". On appeal to the Supreme Court of Canada, the convictions were restored. Justice Binnie observed at paragraph 24, that the trial judge summarized the defence position "with admirable brevity" in a single paragraph, as follows:
It is the theory of both the defendants that the eye-witness identification is seriously flawed. One, the identification is based on assumption. "It must have been the Braich brothers, who else?" Inconsistencies between the statements given to the police shortly thereafter and subsequent changes in buttressing and additions to their evidence should lead to an inference that the witnesses, by discussion with each other, have tainted and colluded to implicate the persons they believe were involved in the crime. And last but not least, it is the theory of the defendants that the eye-witnesses are untruthful and should not be believed.
[73] Despite the brevity of the reasons, Binnie J. held (at paragraphs 25-26) that
…[e]nough was said in the trial judge's reasons to show that he came to grips with the issues thus defined by the defence.
[26] There is no doubt about the basis of his decision. He considered Sher Braich to have been clear and consistent throughout his statements to the police and his trial evidence in identifying Sukhminder Braich as the driver and Ajmer Braich as the shooter. He had known both of them for 10 to 15 years. The trial judge accepted his identification as both credible and reliable. The trial judge was alive to the possibility of collusion but in the end simply rejected it. [Emphasis added]
[74] Mr. Nathanson submitted that the factual landscape and issues were far simpler in the case at bar than in Braich and that unlike the case at bar, the trial in Braich lasted eight days and there were multiple issues surrounding the eyewitness identification. This may be true but a fundamental difference between the decision in Braich and the case at bar is that Justice Binnie makes it clear in various places in his decision, including paragraph 26 and elsewhere, that: “It cannot be seriously suggested that there was no reasoned decision in this case. There is no doubt what the trial judge decided and how he reached his decision…” (at para. 20). In my view, unfortunately, that is clearly not the case here.
[75] Mr. Nathanson also submitted that the trial judge stated on more than one occasion that he must consider “the evidence as a whole” and determine if guilt has been established beyond a reasonable doubt” (at paras. 52 and 62). He also relies on the fact that the trial judge canvassed authorities and in particular Leaney and Nikolovski which indicate that a trier of fact may consider the evidence of a witness familiar with an accused person where that witness purports to identify the accused on a surveillance video, and that the trial judge may himself compare a surveillance video to the appearance of the accused person before him in certain circumstances and come to an independent conclusion. He submitted that having reviewed these principles, there is no “clear indication to the contrary” upon which to base the conclusion that the trial judge did not follow them.
[76] Mr. Nathanson argued that the Reasons of the trial judge demonstrate that he was satisfied that having had a face-to-face encounter with Ms. Fournier when he let her into the club, in a context where his entire purpose was to ascertain her identity before permitting her entry, Mr. Hendrickson was in a position to reliably identify Ms. Fournier on the surveillance video recorded that same evening on the basis of her clothing, her hair, her stature and her general appearance, despite not having a clear view of her facial features on the video. Although Mr. Nathanson recognizes that in various answers Mr. Hendrickson was equivocal, the question is not whether Mr. Hendrickson believed it was “absolutely her”, but whether the Crown had proven to the trial judge, beyond a reasonable doubt, that Ms. Fournier was the assailant. He submitted that the opinion of any particular witness on the ultimate issue is not determinative of the case one way or another. In his factum on this issue Mr. Nathanson stated:
In light of the totality of the evidence, including Mr. Hendrickson’s evidence and the trial judge’s own ability to compare the person on the video not only with the appellant in court, but more importantly with Mr. Hendrickson’s description of Ms. Fournier’s appearance that evening, it is clear that the trial judge was satisfied beyond a reasonable doubt that identification had been proven. [Emphasis added]
[77] I do not accept these submissions. It is not enough that one of the cases relied upon by the trial judge is authority for a trial judge making his or her own observations on the issue of identity by reviewing a videotape of the incident. There is no way of knowing from the Reasons of the trial judge that he even looked at the video during his deliberations and came to his own independent conclusions or if he did, what conclusions he drew from the video. Furthermore, there is no explanation for why he relied on the evidence of Mr. Hendrickson given his honesty was not in issue. Again, what we have are statements of broad principles and nothing was said by the trial judge to tie these principles to the decision to convict.
[78] In my view the facts in R. v. Goran, 2008 ONCA 195, [2008] O.J. No. 1069 which also dealt with the adequacy of reasons of the trial judge in an identification case, are closer to the facts in the case before me. In Goran, the trial judge did not summarize the law as the trial judge did in the case at bar or in MacGillivray. In fact the reasons were barely four pages long and the trial judge simply confirmed that he had heard a lot of evidence dealing with the identification issues. That, however, was not the concern on appeal. Blair J.A. considered the statement of the trial judge that:
The Court must address itself as to the dangers of the identification evidence of witnesses to a crime. I have tried to direct myself to that point, and consequently I have listened to the evidence particularly closely in respect to identification. (At para. 25)
[79] With respect to this statement, Blair J.A. held (at para. 26):
If I were able to ascertain from the trial judge’s reason that he did in fact “address [himself] as to the dangers of the identification evidence of witnesses to a crime”, there would be no substance in this ground of appeal. Respectfully, however, I cannot do so, and I am not confident that the trial judge truly addressed his mind to the frailties in the eyewitness identification testimony of Mr. Philipose and Mr. James.
[80] In the case at bar, the trial judge was clearly alive to the frailties of identification evidence but even though he set out a great deal of the law on point, there is absolutely no mention of the specific issues in this case nor any effort to deal with them. Like the court in Goran, I am not able to conclude that the trial judge did in fact address himself to the dangers of the identification evidence of Mr. Hendrickson. Given identification was the central issue, the trial judge had an obligation to explain why he came to his conclusion that Ms. Fournier was the assailant; see R. v. Wigle, 2009 ONCA 604 at para. 46.
[81] I have already referred to the error made by the Crown and the fact that I have no way of knowing if the trial judge was alive to this error. Even apart from this, in my view the Reasons of the trial judge are still insufficient because we do not know how Mr. Hendrickson’s evidence was dealt with. Although his evidence put Ms. Fournier at the club on the night in question, as already stated Mr. Hendrickson was not on the dance floor when the assault occurred and he could not see Ms. Fournier on the video at the time of the incident.
[82] Furthermore, it was clear at trial that the reliability of Mr. Hendrickson’s evidence was a significant issue and the trial judge recognized that this was the Defence submission at paragraph 46 of his Reasons. That makes the one express comment that the trial judge does make, that Mr. Hendrickson is an honest witness, puzzling, as are all the references to the law of assessing credibility. Beyond that, the trial judge does not make any finding as to the reliability of Mr. Hendrickson's evidence notwithstanding the fact that his identification of the person on video as being Ms. Fournier was made over a year after the event from a grainy surveillance tape, the lighting was dark, the club was crowded and the face of the person he identified as Ms. Fournier was never fully captured. Mr. Hendrickson stated several times that he could not definitively say the woman he picked out was the Appellant and he qualified his identification of her in many ways. Although arguably the trial judge was alive to the frailties of identification evidence given the references he made to the case law, it is impossible to tell if he applied the cautions to his own analysis or for that matter even made a finding that the evidence of Mr. Hendrickson was reliable.
[83] I have identified two significant issues on this ground of appeal; first, did the trial judge erroneously assume that Mr. Hendrickson had identified Ms. Fournier on the dance floor at the time of the assault and second, the fact that he does not explain if and how he addressed the frailty of Mr. Hendrickson’s identification evidence. In my view each issue on its own, is sufficient to grant this appeal on the basis of insufficient reasons. For these reasons I also do not accept the submissions of the Respondent that these inadequacies have in no way hampered he Appellant’s ability to seek appellate review of her conviction.
Third ground of appeal-The trial judge's reasons for relying on the rules relating to exculpatory defence evidence and post-offence conduct are insufficient and preclude appellate review
[84] The third ground of appeal is that the trial judge identified two legal principles that had no application to the case that unfolded in front of him: the first two steps of W.(D.) and post-offence conduct. Mr. Addario submitted that without further reasons, it is impossible to determine why the trial judge considered W.(D.) and post-offence conduct and how these principles influenced his decision to convict Ms. Fournier. He argued that this leaves Ms. Fournier without a sufficient explanation for her conviction and precludes an appellate court from assessing whether the trial judge used the correct legal framework. He also argued that the fact that the trial judge cited legal principles with no apparent application to the case raises the appearance that justice was not served.
[85] As I have already stated, at paragraphs 52-60 of his Reasons, the trial judge instructed himself on credibility, including the W.(D.) principles and erroneously stated that there were “various conflicting testimonies between the Crown witnesses and the Accused” when Ms. Fournier did not testify or introduce evidence.
[86] Mr. Nathanson submitted that this was an innocent error made by the trial judge. He pointed out that at the commencement of proceedings on October 1, 2013, the trial judge was advised by the Appellant’s trial counsel that “the Crown and the defence will file an Agreed Statement of Facts with respect to that witness that you heard about last day, Abdilla”. The trial was briefly interrupted so that the trial judge could complete another matter, and upon resuming, the Crown agreed to a revision to the ASF proposed by defence, and the ASF was read into the record by defence counsel. It was tendered into evidence as an exhibit, with the handwritten revision. The Crown then advised that it “does not intend to call further evidence”, and Mr. Fenton advised that “the defence is not calling any evidence”. The parties then commenced with submissions. In other words, Mr. Nathanson submitted that given that the ASF containing Ms. Abdilla’s statement was provided and read to the court by defence counsel at the end of the Crown’s case, it would be understandable if the trial judge had mistakenly recalled when writing his judgment that the ASF had been tendered as defence evidence; this would be particularly understandable in the context of the closing submissions at trial, as Ms. Abdilla’s evidence was given considerably more emphasis by defence counsel than by the Crown. Thus, Mr. Nathanson submitted that the reference to W.(D.) was likely also inserted in order to demonstrate to the parties that he was aware that he need not be persuaded by Ms. Abdilla’s evidence -- the evidence only had to leave him with a reasonable doubt.
[87] The first problem with these submissions is that they involve speculation. Nowhere does the trial judge link his references to W.(D.) to his assessment of the evidence of Ms. Abdilla and, in fact, as I have already stated, he made no assessment whatsoever of her evidence. Furthermore, given the trial judge had transcripts from which he quoted liberally; it is difficult to find that the trial judge mistakenly assumed that the evidence of Ms. Abdilla was tendered by the Defence. In any event, if that is so, it still does not explain the trial judge’s erroneous reference to the accused testifying and it makes the insufficiency of the Reasons in dealing with the evidence of Ms. Abdilla that I have already referred to even more significant.
[88] The trial judge also instructed himself on the law of post-offence conduct evidence in paragraphs 86-98 of his Reasons even though the Crown never made a submission that it was entitled to the consciousness of guilt inference. The only possible clue in the Reasons of the trial judge is where at paragraph 99 he states: "I accept the evidence of the Complainant as to what went on at the incident when he was assaulted and what occurred immediately following the incident" [emphasis added]. Mr. Nathanson submitted that it is clear from the context of this portion of the Reasons that the trial judge did find the evidence of post-offence conduct to be probative, as he was entitled to do, and that the Reasons do not leave the Appellant “guessing”. Specifically Mr. Nathanson argued that this sentence does not mean that the trial judge thought that Mr. Gruneir had himself testified about the Appellant’s departure from the club. He submitted, that while the sentence structure may have been awkward, read within the context of the judgment as a whole there is no basis to believe the trial judge had misunderstood the evidence. He accurately summarized Mr. Gruneir’s evidence at paras. 3-8 of his Reasons, and reviewed the video evidence showing Ms. Fournier’s departure from the club at pages 11-12 and 19.
[89] The problem with this portion of the trial judge’s Reasons is that it is not clear if he is referring to the complainant’s evidence of post-offence conduct or some other evidence. As Mr. Addario submitted, Mr. Gruneir's testimony about what occurred following the assault provided no evidence on the central issue of identification. Mr. Gruneir testified that he remembered only "[b]its and pieces" of what happened after he was hit; going downstairs at the club and taking a cab to the hospital. Significantly, he did not see the assailant.
[90] I appreciate that I must consider the Reasons of the trial judge in the context of the evidence. While the Crown at trial did not explicitly ask the trial judge to use Ms. Fournier’s departure from the club as circumstantial evidence of guilt, the portion of the video that depicted her doing so was tendered as part of the Crown’s case, and was referred to by the Crown in closing submissions: “you can see her abruptly and quickly leave the club after Mr. Gruneir is assaulted. . . . she’s out the door less than two minutes after the incident occurred . . . .” It was clear from the context of those submissions that the Crown was suggesting that the Appellant’s abrupt departure after the incident was conduct indicative of her involvement in the assault, or was at least confirmatory (to the extent that it was in issue) that the woman seen on video, identified as Ms. Fournier, was the party who hit Mr. Gruneir with the glass.
[91] In my view, if the trial judge was thinking of this when he referred to the law on post-offence conduct, he needed to say so explicitly. Otherwise the parties and this Court have no idea why this law was important enough to the trial judge to devote many paragraphs of his decision to what he viewed as the relevant cases.
[92] What I am more troubled by is that these references to law that were not argued before the trial judge and certainly his references to W.(D.), could suggest that the trial judge used a template from which he cut and pasted portions to complete his Reasons. While there is no problem with a judge using previous work he or she has done to avoid having to re-type summaries of law and cases, if it is done without enough care so that the end result includes references to case law that is not applicable, it leaves the impression that the Reasons were not written specifically for this case.
Conclusion on Adequacy of Reasons
[93] I am mindful of the fact that particularly in the criminal Provincial Courts, the trial judges face long lists and as the court noted in Burns, at para. 18, “to require trial judges charged with heavy caseloads of criminal cases to deal in their reasons with every aspect of every case would slow the system of justice immeasurably.”
[94] The only issue in this case was identification. In order to convict Ms. Fournier, the trial judge had to reject Ms. Abdilla's evidence describing the assailant or reconcile her evidence with the description given by Mr. Hendrickson, rely on Mr. Hendrickson's identification evidence and conclude from Ms. Fournier's proximity to the event and whatever he might have gleaned from watching the video, that Ms. Fournier was the assailant. Although the trial judge’s Reasons are lengthy, the bulk of that is a recitation of the evidence, the submissions of the parties and a lot of case law on credibility, identification, W.D. and post-offence conduct. Ultimately the Reasons of the learned trial judge are not unlike the facts in Sheppard, where the court held: “we are no wiser as to how his reasoning proceeded from there.” (At para. 56) Simply put, the Reasons do not tell the parties and this Court the “why” of Ms. Fournier’s conviction. Even reasoning backwards from the fact the trial judge found Ms. Fournier guilty, there are several ways in which the trial judge might have reached that conclusion and it is not possible to discern which path he chose.
[95] For these reasons, based on the inadequacy of reasons, I would grant the appeal and send this case back to be retried before another judge.
Fourth ground of appeal-Unreasonable Verdict
[96] The fourth and final ground for appeal is that the verdict of the trial judge is unreasonable. It is on this basis that the Appellant asks that that I set aside the convictions and enter an acquittal on both charges.
[97] The test to be applied on this ground is set out in R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 at para. 36. There the court confirmed the test set out in its earlier decision of R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168 as follows: “whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered”. I would add that this test implicitly assumes that a properly instructed jury acting reasonably is a jury that will convict only if it finds that the evidence establishes guilt beyond a reasonable doubt. The court also confirmed that the appellate court is entitled to review, analyze and weigh all of the evidence but only for the purpose of determining if this threshold is met. The appellate court is neither to substitute its view for that of the trial judge, nor to permit doubts it may have to persuade it to order a new trial: R v. Burns (1994), 1994 CanLII 127 (SCC), 89 C.C.C (3d) 193 (S.C.C.) at para. 14, R. v. Quercia (1990), 1990 CanLII 2595 (ON CA), 60 C.C.C. (3d) 380 (Ont. C.A.) at para. 6.
[98] Since this case turns on the reliability of eyewitness identification, I must subject the findings of the trial judge to "closer scrutiny than is generally the case with findings of fact" because of the inherent frailties of this type of evidence. This is so because of the well-recognized potential for injustice in such cases and the suitability of the appellate review process to cases which turn primarily on the reliability of eyewitness evidence and not the credibility of the eyewitness: R. v. Tat, 1997 CanLII 2234 (ON CA), [1997] O.J. No. 3579 (Ont. C.A.) at paras. 99-100.
[99] In R. v. Nikolovski, a decision referred to by the trial judge, the court considered whether a trier of fact is entitled to reach a conclusion as to identification based solely on videotape evidence. Cory J. speaking for the majority held, at para. 23:
If an appellate court, upon a review of the tape, is satisfied that is of sufficient clarity and quality that it would be reasonable for the trier of fact to identify the accused as the person in the tape beyond any reasonable doubt then that decision should not be disturbed. [Emphasis added]
[100] At para. 29 Cory J. went on to find that the weight to be accorded videotape evidence depends more on the clarity and quality of the tape and to a lesser extent the length of time the accused appears on the videotape and that even a few frames “which clearly show the perpetrator” may be sufficient to identify the accused particularly where the trier of fact has reviewed the tape on several occasions and stopped it to study the pertinent frames.
[101] At paras. 30-31 Cory J. also found that triers of fact must exercise care in reaching a conclusion as to identification based solely on videotape evidence. He went on to state, at para. 34, that based on his own viewing of the tape, it was of excellent quality and great clarity and the accused was depicted for a significant period of time including a close-up at one point.
[102] Mr. Addario submitted that the trial judge must have based his decision to convict Ms. Fournier on Mr. Hendrickson's identification since there was no other evidence putting her at the scene. He argued that this conclusion is unreasonable given the uncertainty of Mr. Hendrickson's identification evidence, the gaps in his evidence, the poor quality of the security video and the evidence of Ms. Abdilla.
[103] Specifically, it is the position of the Appellant that Mr. Hendrickson did not witness the assault himself and could not identify the assailant. Rather, he picked out a woman he thought looked like the Appellant from a security video he viewed over a year after the incident. The video is grainy and jerky, it depicts a dark, crowded club and never clearly shows the face of the woman identified by Mr. Hendrickson. Mr. Hendrickson repeatedly stated in his testimony that he was not sure the woman he picked out was the Appellant; he could only say it was her "on a balance of probabilities". He was not well acquainted with the Appellant, having only met her a few times in the three or four years before the incident. Mr. Addario also argued that Ms. Abdilla's evidence supported the inference that someone other than the Ms. Fournier committed the assault.
[104] Mr. Nathanson submitted that the verdict in this case is supported by the evidence and was reasonably available to the trial judge. He argued that Mr. Hendrickson, who had met Ms. Fournier previously, had engaged with her personally, shortly before the assault, in a context where his entire purpose was to confirm her identity before letting her into the club. It is his position that there can, therefore, be no doubt that Ms. Fournier was present at F-Stop that night. Mr. Hendrickson's contact with her in this context gave him an opportunity to properly observe her appearance and clothing on the night in question. Mr. Nathanson submitted that even though Mr. Hendrickson was unable to say that the assailant on video was "absolutely her", he testified that the assailant was "who I remember her [Ms. Fournier] being. It's what my memory tells me". This submission is flawed in the same way that Crown counsel’s (not Mr. Nathanson) was flawed at trial since nowhere does Mr. Hendrickson identify the woman he believes to be Ms. Fournier as the assailant.
[105] Mr. Nathanson also submitted that the trial judge had an opportunity to review the quality of the video, and to assess Mr. Hendrickson's evidence in that light. The trial judge was able to compare the woman in the video to Mr. Hendrickson's description of the Appellant that night, and with his own observations of her general appearance. He was also permitted to consider the evidence of post-offence conduct in reaching his final conclusion.
[106] As I have already stated, we do not know if the trial judge reviewed the video again during his deliberations and took his own conclusions into account in convicting Ms. Fournier. Mr. Nathanson provided an excerpt of the video surveillance and asked that I review it. He submitted that if I watch it very carefully, the woman whom Mr. Hendrickson identified as Ms. Fournier can in fact be seen on the dance floor making a motion consistent with throwing something. In other words, even though Mr. Hendrickson could not spot her, she is there and accordingly, this is some evidence to support the convictions.
[107] Mr. Addario argued that the video evidence in this case could not fill the gaps in Mr. Hendrickson's evidence because unlike the video in Nikolovski, the security footage in this case does not clearly portray the scene of the crime or the crime itself, such that the trial judge could draw an independent conclusion about the assailant's identity. Mr. Hendrickson, who knows Ms. Fournier, was unable to locate the woman he believed was Ms. Fournier on the video during the approximately 30 seconds depicting the assault. The eyewitness, Mr. Werek, was unable to identify even himself on the video. Accordingly, it is Mr. Addario’s position that the video is of such poor clarity and quality that the trial judge could not have relied on it to convict.
[108] The security video was not shown to me during the course of counsel’s submissions. However, as requested by counsel, I reviewed the excerpts of the security video on the DVD provided to me, during my deliberations. I was at a disadvantage as compared to the trial judge and Mr. Hendrickson as based on the transcript, it is clear that during the trial at least, counsel were able to freeze the video at various points which I was not able to do with the DVD provided to me. I paid particular attention to those portions of the video that Mr. Hendrickson was shown and reviewed the footage from cameras 3, 4 and 12. I reviewed many times the video footage starting a couple of minutes before the time of the incident and the minute or so thereafter, as shown on camera 12, looking for what the Crown submitted was there to be seen. In this regard I relied on paragraphs 38 and 39 of the reasons of the trial judge, which set out in detail the Crown’s submissions at trial as to what can be seen on camera 12 at certain times, in addition to the timing references and the descriptions given by Mr. Hendrickson that I have set out above.
[109] On the video from camera 12 at 00:52:12 seconds, I was able to identify the woman on the dance floor who Mr. Hendrickson said was at the front of the screen, wearing what looked like the dress he recalled Ms. Fournier wearing when she came in. That woman has long wavy blonde hair and she is wearing a spaghetti strap long dress. I note, however, that based on video of this woman leaving, she is in fact wearing loose and flowing wide pants that could appear like a long dress. The colour on the video is not very good and so all that can be said is that the dress is a dark colour. She is not wearing a scarf or carrying a tote bag at this time.
[110] I watched this portion of the video from camera 12 many more than the three times it was shown to Mr. Hendrickson and by doing so, I did not lose sight of this woman as Mr. Hendrickson did although at times I could not see her because of the quality of the video or because someone else in the video blocked her view. I was able to observe this woman turn to face the right side of the screen and see that she had a glass her left hand, at 00:52:29 seconds. At this time she appears to be dancing with a man in a white shirt and a woman with shoulder length dark hair appears to be with them as well.
[111] At trial the Crown submitted that at 52:30 you can see Mr. Gruneir get bumped by a male after which it appears that words are exchanged for a period of time. I see this incident but am not able to determine if the male is Mr. Gruneir but assuming that is the case, he and the male in the white shirt do bump into each other as Mr. Gruneir tries to pass by. There are words exchanged and it seems that others intervene to prevent a fight. Mr. Gruneir walks away.
[112] The video shows Mr. Gruneir going to speak to someone at 53:11; the Crown says this is Mr. Habert, who returns to the dance floor with Mr. Gruneir. The dance floor is very crowded and the images are dark and often blurry and jerky. I was able to see this blonde woman along with the dark haired woman and the man in the white shirt until about 00:53:33 when it appears that two other men approach this group. The Crown at trial submitted this was Mr. Gruneir and his friend Mr. Habert. As they reach the man in the white shirt I was able to observe the man alleged to be Mr. Gruneir shove or punch this man.
[113] At this point there is an altercation involving what looks like about six people and the blonde woman is in the fray. Initially she is standing to the left of the man in the white shirt. The altercation only lasts a matter of seconds. Despite watching this portion of the video many times I am not able to say with any certainty what this woman did during this altercation. She appears to have made physical contact with the man alleged to be Mr. Gruneir and it looks like he grabbed her wrist. However, what I can observe could also have been the man in the white shirt shoving Mr. Gruneir back. In any event at this point it does not appear that Mr. Gruneir was injured because he remains standing.
[114] The female is then pulled or moves behind the man in the white shirt. She is in this position when the man that must be Mr. Gruneir bends over; I presume from a glass striking his eye. I presume it is at this point that the Crown alleges that this woman can be seen making a throwing motion using her right hand, throwing her glass over the shoulder of the man in the white shirt and hitting Mr. Gruneir.
[115] Given the poor quality of the video I was not able to see the specific motions of the arms and hands of this blonde woman or anyone else as the altercation results in a few people interacting. However from what I do see I accept that if the video were viewed at this point frame by frame it is certainly possible that this blonde woman threw the glass that she had in her hand and the glass hit Mr. Gruneir. However, from what I can see it is also possible that someone else took the glass from her and threw it or for that matter that someone else’s glass was thrown.
[116] After the altercation that presumably resulted in the injury to Mr. Gruneir, the blonde woman and the gentleman in the white shirt can be seen dancing some more near the bar. They do not leave immediately. I was not able to observe the woman being grabbed by another woman who could have been Ms. Abdilla or interacting with anyone at or near the bar. That however could be due to the poor quality of the video. Ms. Abdilla’s evidence did not suggest that she was shown this video
[117] When this couple does leave at around 00:54:33 they are walking normally and a number of other people are leaving as well. I would not describe their departure as abrupt. I viewed the images from Cameras 3 and 4 and they are clearer than camera 12. It does seem to be the same couple that leaves the bar and again, there are others leaving although none appear to be with the couple. The woman can be seen carrying a tote bag but is not wearing a scarf. The bag, however, is large enough to hold a scarf.
[118] Having viewed the key video from camera 12 numerous times, I find that the quality of the video is so poor that it would not be reasonable to rely on it, on its own, in convicting Ms. Fournier. As Mr. Addario submits, the video is grainy and jerky, and the images are dark and blurry. The dance floor is very crowded and people are moving about. I can certainly understand why Mr. Hendrickson, who knew Ms. Fournier well enough to recognize her, was not able to pick her out during what he described as a “shuffle”.
[119] However, if the video were played frame by frame, based on what I do see, I accept for the purpose of this appeal that it might be that the video could be used to fill in the gap in Mr. Hendrickson’s evidence and it could be concluded that this blonde woman is the assailant. That however leaves the issue of whether or not it could reasonably be concluded that this blonde woman was Ms. Fournier.
[120] A trial judge would certainly be able to rely on the evidence of Mr. Hendrickson and conclude that Ms. Fournier was at the F-stop on the night in question. However the trial judge would still have to deal with the frailties of Mr. Hendrickson’s evidence and the fact that even accepting all of his evidence, at its highest he could only say this blonde woman was Ms. Fournier "on a balance of probabilities". I do not accept Mr. Nathanson’s submission that the trial judge would have been able to come to that conclusion based on Ms. Fournier’s actual appearance at trial or her photo from the photo line-up since her face is never visible on the video. At most the trial judge could have concluded that Ms. Fournier is a blonde woman perhaps with a height that fit the descriptions.
[121] A trial judge hearing this case would also have to decide whether to reconcile or reject the evidence of Ms. Abdilla. Assuming the best position for the Crown, a trial judge would have to accept those portions of Ms. Abdilla’s description that is the same as Mr. Hendrickson’s and ignore the rest. Even if that were done however, apart from the fact that Ms. Fournier had blonde hair and was wearing something that resembled what Mr. Hendrickson recalled Ms. Fournier was wearing there was nothing in the evidence of Ms. Abdilla to connect her description specifically to Ms. Fournier especially as she was not able to pick her out from the photo line-up. The trial judge would be able to consider the evidence of Mr. Werek but he was only able to say that he thought the woman was blonde.
[122] In considering the totality of the evidence in this case, even if the trial judge could conclude from watching the video, frame by frame, that the woman with the long blonde hair that Mr. Hendrickson pointed out as probably being Ms. Fournier is the assailant, the balance of the evidence in my view would not be capable of allowing a trial judge to conclude that the Crown had proven beyond a reasonable doubt that this woman was Ms. Fournier as opposed to another blonde woman in a dress similar to what Ms. Fournier was wearing who happened to be in this crowded club that night.
[123] For these reasons I conclude that the verdict is unreasonable; a trial judge, properly considering the totality of the evidence and carefully reviewing the security footage, could not reasonably find that the evidence establishes the guilt of Ms. Fournier beyond a reasonable doubt.
Disposition
[124] For these reasons, the appeal is allowed, the Appellant’s convictions are set aside and acquittals are entered on both counts.
SPIES J.
DATE: January 9, 2015